![]() ![]() ![]() 2007)-a case decided before the Rule 26 amendments-the court weighed whether treating physicians are subject to Rule 26(a)(2)(B) and concluded that the plaintiff’s treating physician was not required to provide a report. When determining if a treating physician opines beyond the scope of their allowable testimony, courts consider a variety of factors. This leaves an immense amount of uncertainty around a procedural issue that may be dispositive of a case. Current case law in federal courts, as well as state courts, is murky at best and fails to establish a bright line rule. However, the rules neither offer any clarity on the situation where a treating physician is opining as an expert witness, nor do they address when a treating physician is retained or specifically employed as an expert witness. The scope of a treating physician’s testimony is unclear under Sixth Circuit case law.Īs stated above, a treating physician is treated as a lay fact witness under the Federal Rules of Civil Procedure. While it may seem menial to differentiate between an expert witness and a treating physician, cases are often decided based on the testimony of one treating doctor giving opinions on issues that should be given by experts. A treating physician would be classified as a witness who does not need to create an expert report. The rule governs witnesses who are not providing any expert testimony, as expert witnesses must comply with Rule 26(a)(2)(B). This rule aligns with the 1983 amendments to limit unduly expensive discovery requirements. Instead, such witnesses must only state the subject matter they are expected to present as evidence and a summary of the facts and opinions to which they are expected to testify. Rule 26(a)(2)(C) was added in 2010 and explains that some expert witnesses do not need to provide written reports. These reports must contain several elements which allow the expert to opine on the incident at hand. To be disclosed as an expert witness retained specifically for litigation, the party disclosing the expert must submit a written report prepared and signed by the witness. These witnesses, however, may have different disclosure requirements under Fed. Under Rule 26(a)(2)(A), a party must disclose the identity of any witness it may use at trial to present evidence under Fed. These initial disclosures are due 14 days after the parties have a Rule 26(f) conference, now required under the recent Rule 26 amendments, which is when expert witness are disclosed. The very first step in litigation is to disclose any individual who is likely to have discoverable information. ![]() Identifying an expert witness requires several steps before their testimony is allowed at trial. Federal Rule of Civil Procedure 26 governs the necessary steps when identifying an expert witness Part IV will focus on the importance of a court ensuring that a treating physician does not extend their testimony beyond the allowable scope under the Federal Rules of Civil Procedure. Then, Part III will analyze case law in the Sixth Circuit showing the difficulty in identifying when a treating physician’s testimony extends past what is allowed. Part II will analyze the procedural steps necessary when identifying a treating physician versus an expert witness in Fed. This article will walk through various difficulties in the “treater v. In trial, it is extremely important for an attorney to acknowledge the true scope of their treating physician’s testimony and be diligent when addressing these kinds of situations. The 2020 Amendments to Rule 26 make it even more imperative for attorneys to become familiar with the amendments. However, during a trial, such testimony often extends past the permissible scope. ![]() Typically, treating physicians are determined to be lay fact witnesses, and thus, their testimony is limited. The treating physician: one of the most important people in your life when you’re sick or injured, and one of the most difficult witnesses when determining what testimony is allowable in a court. Patrick Mullinger, Associate Member, University of Cincinnati Law Review Photo by National Cancer Institute on Unsplash ![]()
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